Canaan v. Costco Wholesale Membership, Inc.

• Decision Date: 11 March 2008
• Docket Number: 2006-10840.
• Parties: RHINA CANAAN et al., Appellants-Respondents, v. COSTCO WHOLESALE MEMBERSHIP, INC., et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

49 A.D.3d 583

854 N.Y.S.2d 442

2008 NY Slip Op 02095

RHINA CANAAN et al., Appellants-Respondents, v. COSTCO WHOLESALE MEMBERSHIP, INC., et al., Respondents-Appellants.

2006-10840.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided March 11, 2008.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated September 29, 2006, as granted that branch of the defendants' motion which was for leave to reargue, and upon reargument, vacated its prior order dated June 2, 2006 granting the plaintiff's prior motion to strike the defendants' answer, and thereupon denied that prior motion, and the defendants cross-appeal, as limited by their brief, from so much of the order dated September 29, 2006, as denied those branches of their motion which were for summary judgment dismissing the complaint insofar as asserted against the defendant Costco

Wholesale Membership, Inc., doing business as Costco Wholesale, Inc., and to change the venue of the action from Kings County to Westchester County.

Ordered that the order dated September 29, 2006 is affirmed insofar as appealed from; and it is further,

Ordered that the order dated September 29, 2006 is reversed insofar as cross-appealed from, on the law, those branches of the defendants' motion which were for summary judgment dismissing the complaint insofar as asserted against the defendant Costco Wholesale Membership, Inc., doing business as Costco Wholesale, Inc., and to change the venue of the action from Kings County to Westchester County are granted, and the Clerk of the Supreme Court, Kings County, is directed to deliver to the Clerk of the Supreme Court, Westchester County, all papers filed in this action and certified copies of all minutes and entries (see CPLR 511 [d]); and it is further,

Ordered that one bill of costs is awarded to the defendants.

The Supreme Court providently exercised its discretion in granting that branch of the defendants' motion which was for leave to reargue (see Long v Gap, Inc., 35 AD3d 673 [2006]). Furthermore, upon reargument, the Supreme Court correctly vacated its order dated June 2, 2006, which struck the defendants' answer. There was no showing that the defendants willfully or contumaciously failed to comply with the plaintiffs' requests for, or court orders directing, disclosure (see CPLR 3126; Conciatori v Port Auth. of N.Y. & N.J., 46 AD3d 501 [2007]; Sau Ting Cheng v Prime Design Realty, Inc., 44 AD3d 644 [2007]; Resnick v Schwarzkopf, 41 AD3d 573 [2007]). In addition, the plaintiffs' argument that the defendants' alleged spoliation of evidence provided an independent ground for striking the answer was improperly raised for the first time in their reply papers, submitted on the underlying motion to strike (see Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677, 677-678 [2005]). In any event, the remedy of striking the defendants' pleading was not warranted in this case, as the alleged spoliation did not leave the plaintiffs "prejudicially bereft" of the means of presenting their claim of actual notice of the condition that caused the injured plaintiff to fall (see Lamb v Maloney, 46 AD3d 857 [2007]). Accordingly, we affirm the order insofar as appealed from.

As for the cross appeal, the defendants made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that the defendant Costco Wholesale Membership, Inc., doing business as Costco Wholesale, Inc. (hereinafter Costco Membership), did not own, control, occupy, maintain manage, or possess the property where the injured plaintiff fell. Accordingly, it owed no duty to her (see Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]; Schwalb v Kulaski, 29 AD3d 563, 564 [2006]; Usman v Alexander's Rego Shopping Ctr., Inc., 11 AD3d 450, 451 [2004]). In opposition, the plaintiffs failed to raise a triable issue of fact (...